England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		21st June 2007

1. LORD JUSTICE HOOPER: The Attorney General seeks leave to refer to this court as unduly lenient sentences passed on three offenders. We grant leave.
2. The first offender is Lee Campbell. He is 30 years of age, having been born on 19th March 1977. The second offender is Paul Anthony Crummack. He is 21 years of age, having been born on 19th April 1986. He was 20 at the time of the offences. The third offender is Michael Anthony Stell. He is 22 years of age, having been born on 26th February 1985. He was 21 at the time of the offences.
3. All three offenders pleaded guilty to two counts of robbery. Count 1 charged them with, on 7th day of September of 2006, robbing Melvin Baldwin of electrical equipment, and count 2 charged them on the same day of robbing William Cameron Hague of two mobile phones. In addition, the second offender, Crummack, pleaded guilty to manslaughter by unlawful killing of Melvin Baldwin.
4. Before pleas, the judge had been asked to give, and gave, an indication of sentence. The sentences passed reflected that indication. The judge decided that each offender was entitled to a full one third credit for pleading guilty early. That decision is not challenged by the Attorney General.
5. The sentences which were passed on 8th March 2007 were as follows. For the first offender, two years and nine months' imprisonment on each count to be served concurrently. For the second offender, two years and six months' detention in a young offenders institution on each count to be served concurrently, and three years and six months' detention in a young offenders institution to be served concurrently for the offence of manslaughter. As far as the third offender is concerned, he received a sentence of two years and six months' imprisonment on each count to be served concurrently. There were other orders which we do not need to mention, but which we affirm.
6. The judge made a declaration under section 240 of the Criminal Justice Act 2003 that, in the case of the first offender, 170 days spent on remand should count towards the sentence, and in the case of the other two, 168 days. That declaration is not challenged.
7. In summary, the offenders went to a flat occupied by the victim, Melvin Baldwin, who was 67 years of age. Mr Baldwin's partner, William Hague, aged 31, was visiting the flat at the time. The offenders were admitted to the house by Baldwin. The second offender had an iron bar and the third offender had a rolling pin. The victims were threatened with the weapons but the weapons were not used. Melvin Baldwin was punched once by the second offender. It was that punch which led to his death. William Hague was punched twice by the second offender as they left. The violence actually used was at the lower end of the scale, albeit of course the punch caused the death. The offenders left when challenged. Before leaving they had committed the thefts. Eight days later, Mr Baldwin died of a head injury which he had sustained as a result of the second offender's single punch.
8. The detailed facts were as follows:

"(a) Melvin Baldwin and William Hague lived together in a one bedroom flat in Shipley. Mr Baldwin knew the 1st offender, having met him while both were serving prison sentences. Mr Baldwin had a number of convictions involving sexual offences against male children.

(b) On 7th September 2006 the offenders went to the victim's flat, together with a 4th man who was never charged. The 3rd offender drove the group to the flat. The 1st offender was able to gain entry because Mr Baldwin knew him. The 2nd offender took with him an iron bar and the 3rd offender had a rolling pin. Having gained entry to the flat, the 3rd offender stood in front of Mr Baldwin, tapping the rolling pin on his hand in a threatening manner. The 2nd offender stood behind Mr Baldwin, holding the iron bar.

(c) The 1st offender ransacked the bedroom. The 2nd offender started demanding money. Mr Baldwin refused and the 3rd offender said 'Do him'. The 2nd offender struck Mr Baldwin with his fist, causing Mr Baldwin to fall backwards into his chair. It was this blow which was to prove fatal.

(d) The 3rd offender then pinned Mr Hague into this chair by holding the rolling pin against his throat. The offenders demanded the keys to a small locked metal box, but, when the keys were handed over, they discovered that it was empty.

(e) The incident ended when Mr Baldwin stood up and brandished a sherry bottle. The offenders left, taking a quantity of electrical items including DVD players and mobile telephones. On leaving the premises the 2nd offender punched Mr Hague twice on top of his head. Mr Hague thought that it was in frustration at the lack of goods.

(f) On Friday 15th September Mr Baldwin complained of pain in his head. He was taken to hospital by ambulance. A scan showed that blood had collected within his skull and was compressing his brain. He was declared dead at 9.17 p.m. on the same evening. Mr Baldwin had had a heart complaint in respect of which he was taking warfarin which exacerbated the subdural bleeding. (The sentencing Judge said that the 2nd offender had been unaware of this).

(g) The 1st offender was arrested on 16th September. The 2nd and 3rd offenders were arrested on 19th September. The offenders were interviewed.

(h) The 1st offender said that they had gone to the victims' flat, at the suggestion of the 3rd offender, to scare Mr Baldwin and take some property. He had not intended that there should be any violence and he had not seen any weapons. He had agreed to go because on one occasion in the past Mr Baldwin had made an indecent approach to him while he was asleep.

(i) The 2nd offender initially made no comment but then said that the others had suggested the idea to him and that the intention had been to scare the victims. He asserted that he had had no weapon and denied having punched Mr Baldwin. He indicated that he disliked paedophiles because his father had abused his sister.

(j) The 3rd offender said that he had been the lookout. He admitted that he had had the rolling pin but said that it had been handed to him by the 2nd offender.

(k) Some of the stolen property was recovered but some had already been sold.

(l) The 1st offender had 34 previous convictions for 122 offences, starting in 1988 when the offender was 11 years old. Most of these were offences of theft and burglary. He had one conviction for attempted robbery and had been sentenced to 33 months' detention. His longest sentences was one of 4 1/2 years' imprisonment for burglary of a dwelling and assault occasioning actual bodily harm.

(m) The 2nd offender had no previous convictions and one caution for an offence of criminal damage.

(n) The 3rd offender had 7 previous convictions for 14 offences. These included an offence of burglary and an offence of possession of an offensive weapon in respect of which he served a short custodial sentence. The remaining offences were mainly motoring matters."

9. Mr Hilliard, on behalf of the Attorney General, submits that the following aggravating factors are present. The victim was a 67 year old man who was robbed in his own house. The robberies were carried out by four men acting together. Weapons were used to threaten the victims, namely the rolling pin and the iron bar. The first offender used his previous association with the victim to gain access to the flat. The offending was in part motivated, at least in the case of the first and second offenders, by a desire to punish one of the victims for sexual matters. Insofar as the offender Campbell is concerned, he had an extensive list of previous convictions. In the case of the third offender, he had the convictions to which we have already referred.
10. The following mitigating factors are present. In the case of the first offender, he assisted the police by providing the names of the co-offenders in interview and he pleaded guilty. In the case of the second offender, he also pleaded guilty and he had no previous convictions. In the case of the third offender, he pleaded guilty.
11. For the purposes of determining the correct sentence for the first and third offenders for the counts of robbery, the manslaughter must, as Mr Hilliard accepted, be ignored.
12. The judge declined to pass an indeterminate sentence. That decision is not challenged.
13. Mr Hilliard accepted that in the case of the second offender, the judge was right to pass concurrent sentences for the robberies and the manslaughter.
14. Although the judge made a distinction between the sentences passed on the three offenders, we take the view that, if we decide to interfere with the sentences, then all three offenders should receive the same sentence for the robberies (although we fully understand why the judge added the additional three months to the first offender's sentence). The first offender is aged 30 and has, as we have seen, a very extensive and relevant criminal record. The second offender was only 20 at the time of the offence, had no previous convictions, but he was armed with the iron bar and the robbery was aggravated by the manslaughter in his case. The third offender was 21 at the time of the offences, had a bad and relevant record and was armed with a rolling pin. Additionally, the third offender told the second offender to "Do him", which the second offender then did, punching Mr Baldwin. Taking all those circumstances into account, we have reached the conclusion that it should be the same sentence for all three offenders insofar as the robberies are concerned.
15. We start with the appropriate sentence for the robberies. We turn to the Sentencing Guidelines Council Definitive Guideline for Robbery. We turn first to page 3. At page 3 the Council divides robberies into five categories. They are, (1) Street robbery or mugging; (2) Robberies of small businesses; (3) Less sophisticated commercial robberies; (4) Violent personal robberies in the home; (5) Professionally planned commercial robberies. The Council gives guidelines for categories 1, 2 and 3, but as to categories 4 and 5 wrote this:

"No guideline is provided for categories 4 and 5. Violent personal robberies are often accompanied by other serious offences which affect sentencing decisions. For professionally planned commercial robberies, existing case authority is still valid and this is summarised in Part 2."

At page 15 the Council said of robberies in that fourth category, namely violent personal robberies in the home:

"The sentencing range for robbery in the home involving physical violence is 13-16 years for a first time offender pleading not guilty. In this type of case, the starting point reflects the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used."

16. Mr Hilliard did not suggest that a sentence in the range of 13 to 16 years for the robberies with which we are concerned would be an appropriate sentence. It seems to us that the Council had in mind much more serious robberies than these.
17. We ask the question then: "Did the Council intend that robberies of the kind which would not attract sentences of 13 to 16 years fall within categories 1 to 3?" The answer to that question must be "no". We give that answer because the list of additional aggravating factors for category 1 to 3 robberies at pages 11 and 12 of the guideline does not include the aggravating factor of the robbery being within a person's home. That said, it is of value to see what would have been the appropriate sentence for these robberies if committed in the street by a person who has no previous convictions and who is convicted after a trial. If one goes to page 11 of the Council guidelines, this would have been a level 2 robbery. Taking into account all the circumstances of these robberies, but assuming for the moment that they were on a street, it seems to us that the appropriate sentence, after a trial for a person with no previous convictions, would be in the region of five and a half years. The fact that a robbery is committed in someone's home is clearly a very important factor which could increase the sentence. Putting on one side the authorities, we take the view that an additional two years, or possibly a little more, would be appropriate for a robbery of this kind to reflect the fact that it was committed in someone's home, entry having been gained, as it was in this case, by subterfuge as opposed to force.
18. We turn to the authorities to which Mr Hilliard referred us. We start with Attorney-General's Reference No 48 of 2000 (Martin Clive Johnson) [2001] 1 Cr App R (S) 123, BAILII citation: [2000] EWCA Crim 94. We take the facts from the headnote. A sentence of four years' imprisonment was passed for the robbery of a 79 year old man in his own home. That sentence was held by this court to be lenient, albeit not unduly lenient. The offender had pleaded guilty to robbery. He went to a flat occupied by the victim, who suffered from arthritis and could only walk with the aid of a stick. When the man had got into his flat on his return from shopping, he heard banging on the door and opened it to find the offender standing outside. The offender forced the door open, pushed the man to the floor face down and went through his pockets, taking £24 from him. When the man tried to stop him, the offender punched him on the mouth and nose. The offender then searched for other objects of value and left without taking anything else. The offender initially denied the offence but indicated an intention to plead guilty when proceedings were started. He had 21 previous conviction in respect of a total of 49 offences. He had been released from a sentence of three years' imprisonment for similar offences 13 months earlier. In paragraphs 26 to 27 of the judgment of the court, Roch LJ said:

"26. The decided cases to which we have been referred indicate, in our view, that sentences in cases such as this, where there is a single offence and the offender has pleaded guilty, range between four and seven years' imprisonment. Where in that bracket the appropriate sentence comes must depend on all the relevant circumstances, among which the offender's record and character will be important, as will be the timing of the guilty plea: an early plea or an early indication of a guilty plea removing a cause of anxiety to the victim.

27. Here the offender's record and the act of gratuitous violence would have led the members of the Court to have imposed a sentence greater than the four-year term passed by the judge. We consider that the sentence passed was lenient but in the light of the comparable cases brought to our attention we cannot conclude that it was unduly lenient. The sentence falls at the bottom end of the range of sentences which are permissible, as disclosed by the cases we have read. This was a case where the guilty plea was indicated at a very early stage and there were indications of remorse on the part of the offender, and of a desire to reform which appeared in the reports and which the judge accepted and took into account. We observe that the up-to-date report from prison supports those parts of the pre-sentence report."

19. As Mr Hilliard points out, the suggested sentence of between four and seven years on a plea of guilty would be consistent with a sentence of six to ten years after a trial. We note that no weapon was used and there was only one robber.
20. We turn to Attorney-General's Reference No 34 of 2003 (Dean Poyner) [2003] EWCA Crim 3073, [2004] 1 Cr App R (S) 71. We take the facts of Poyner and the arguments from the judgment of Kay LJ:

"3. The victim of the offence, David Small, lives in a two bedroomed detached bungalow in Locking, Weston Super-Mare. At about 6.30 pm on Saturday 25th January 2003 he was alone in his lounge watching television when his doorbell rang. He opened the door and saw a white male who turned out to be the offender smiling at him and a black male standing behind him. The black male squirted liquid into his face. Fortunately this had no lasting effect on him. The offender then barged the victim backwards and punched him several times to the face. He pointed a pistol-type gun at him. The gun had a 6 to 7 inch long barrel. The victim however appreciated that it was not a real gun. It was in fact a gun capable of discharging pellets if it was in working order, but it was not even in working order.

4. Having entered the flat the offender demanded that the victim should tell them where the safe was and that way he would avoid getting hurt. The victim responded that he had no safe. That response was indeed true because in May 2002 he had been the victim of another burglary in which his safe, containing a substantial amount of money, had been stolen and he had never replaced it.

5. The two men then pushed the victim into his kitchen and tied his arms up with zip ties. The accomplice switched off the victim's mobile telephone and put it in his pocket. They repeatedly asked where the safe and money were. He was dragged to the hallway and then into his bedroom and forced face down on the bed. The two men continued to repeat their demand that he should reveal where the safe was. Eventually the victim told them that there was some money in the chest of drawers by the bed. The accomplice emptied the drawer and took some £2,000 from it and also loose change from some jars.

6. The offender then tied up the victim's knees and feet using his own belt and ties which he took from the wardrobe. They stole his camcorder and then put his vest over his face. The victim heard the offender say, "Go and get a knife, we'll have to cut him". The victim could then hear his house being ransacked and eventually heard them say that there was no safe. Then the offender went back to check the victim and noticed that some of the ties had come off. His response was to punch him again several times to the head. He told the victim that he should not leave until an hour after they had left. He threatened to harm his son if they did not do as they said. The offender then took the victim's wallet from his back pocket, which contained cash, his driving licence and bank cards, and they then left the premises.

7. Once they had gone Mr Small looked round his house and saw that both his and his son's bedroom had been ransacked and were a mess. He telephoned the police. When the police arrived they found inside the front door of the porch entrance the remains of the firearm (the one not in working order) that had been carried. They also noticed that Mr Small's face was bleeding and swollen.

...

12. On behalf of the Attorney General it is submitted that there were a number of aggravating features to this case. The first is that the attack was clearly planned. The second is that the offence involved two individuals attacking a single victim. The third is that the attack took place in the evening. The fourth is that actual violence was used involving the victim being tied up, his face covered and his being punched on more than one occasion. The fifth is that the offender was carrying an imitation firearm. The sixth is that a significant amount of property was stolen. A further aggravating feature was present, in that the offence had been committed fifteen days after the offender had been made the subject of a community rehabilitation order. That list of aggravating features identified by the Attorney General omits the factor that we view as being very serious that this attack took place in the victim's own home, a place where above all others he ought to be entitled to feel safe.

13. It is recognised on behalf of the Attorney General that there are mitigating features in the case. The first is that the offender pleaded guilty, although it has to be recognised that the evidence against him was overwhelming. The next is one to which the sentencing judge attached importance, and that was that the victim appreciated that he was not being confronted with a real firearm. In all the circumstances, it is submitted that the sentence of three years' imprisonment did not adequately reflect the gravity of the offence."

In deciding what was the appropriate sentence, the court said this:

"18. ... This was on any view a very serious offence of its kind. It involved the deliberate plan to go to this person's house. It seems likely that there was some knowledge that at some stage he had had a safe because of the demand to know where the safe was located. The offence involved two men attacking a single victim in his own home. They went armed with a weapon. The weapon was in fact a firearm. It no doubt was carried because they believed that the victim would think that it was a real gun, otherwise there would be no point in carrying it. Once they got there there was the serious feature of squirting something in his face - again inevitably going to increase the fear that he felt. Then he was manhandled back into his own home and gratuitous punching to his face took place. There was then the further experience of his having been taken to his bedroom, tied up, put on his bed, something being placed over his head and a further attack upon him for no good reason at all when he was later punched by the offender yet again. In those circumstances it seems to us that, notwithstanding that the victim was not a particularly vulnerable person, this was nonetheless a very serious case. In our judgment the proper sentence following a trial for a case of this kind was of the order of nine years' imprisonment. The appellant had pleaded guilty at an early stage and it was right that he was given credit for his plea of guilty. Following a guilty plea at first instance we would have thought that the appropriate sentence for this offender, with his record, for this offence was one of seven years' imprisonment."

21. It was submitted by counsel for the offenders in this case that that case is more serious than the one with which we are concerned. We agree. We note that in paragraph 18, Kay LJ said that the sentence, after a trial, should have been in the order of nine years' imprisonment.
22. The next case to which we were referred was the Attorney-General's Reference No 4 of 2004 (Joseph Green) [2004] EWCA Crim 1197, [2005] 1 Cr App R (S) 23. We take the facts from the judgment of Latham LJ. The sentence passed was one of four years' imprisonment for the robbery of the residents of the flat by one of three men, who went to the flat armed with knives and threatened the residents. That sentence was held to be unduly lenient. The facts were:

"2. The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs.

3. The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money.

4. The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat.

5. Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade.

6. At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large.

7. This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness."

23. At paragraph 9 Latham LJ looked at two earlier cases and stated that counsel for the Attorney General derives from them the submission that the appropriate sentence (where there was no credit to be given for a plea of guilty) would be in the region of eight years. With that submission, the Court agreed. We note that in that case the offender had 13 previous convictions.
24. It was submitted to us on behalf of the offenders that the index robberies are less serious than the robberies in this case. We agree but only marginally so.
25. We were also referred to the decision of this court in Attorney-General's Reference No 113 of 2004 (Follows) [2004] EWCA Crim 3209. In our judgment, that case does not add anything further. Likewise, another case to which we were referred, Attorney-General's Reference Nos 38 and 39 of 2004 (Aaron Randall, Troy Donaghue) [2004] EWCA Crim 1820, [2005] 1 Cr App R (S) 60, does not, in our view, add anything.
26. Mr Hilliard submits that the appropriate sentence for a person convicted of the robberies with which we are concerned is nine years after a trial, assuming that the person had no previous convictions.
27. We take the view that a sentence of nine years' imprisonment for which he contends is too long for these robberies.
28. Mr Hendron submitted (a submission with which other counsel agreed) that the appropriate sentence would be within the range of six to nine years.
29. Mrs Azmi submitted:

"That the offence was not sophisticated. In that

• One of the offenders was well known to the victim.

• No attempt was made to cover their faces.

• Whilst weapons were used to intimidate the victim, they were not used to inflict any violence.

• As soon as the victim fought back by raising the sherry bottle the offenders fled the premises.

• The actual violence used was very limited in nature as well as duration.

• In addition to the single punch to the deceased, the offender hit William Hague twice on the top of the head. No injury was caused, and the victim described the blow as being more in frustration than anger."

30. We take the view that, following a trial for these robberies, a person with no previous conviction should be sentenced to a period of imprisonment in the region of seven to seven and a half years. Such a sentence would be consistent with our suggested sentence for a category 2 robbery with the additional aggravating feature of the robbery taking place in the victim's home.
31. In our view, the appropriate sentence for all three offenders after a trial, given their individual aggravating circumstances, was in the region of eight to eight and a half years. The sentences of two years six months and two years nine months were unduly lenient. Taking into account the early pleas and reducing the sentences by a small amount to reflect the aspect of double jeopardy, we substitute sentences of five years' imprisonment concurrent for offenders 1 and 3 and five years' detention in a young offenders institution concurrent for offender 2. The sentences are to take effect from 8th March 2007.
32. We turn now to the manslaughter sentence for the second offender.
33. Both Mr Hilliard and Mrs Azmi referred us to Furby [2005] EWCA Crim 3147, [2006] 2 Cr App R (S) 8. In that case the Lord Chief Justice gave guidance as to the appropriate sentence for what is often called a "one blow manslaughter". In the particular case the victim had behaved, so it appears, inappropriately towards a woman. A little later the victim apologised in the presence of the woman's sister and the appellant. Notwithstanding that apology, the appellant hit him once, causing his death. The single blow had caused a traumatic subarachnoid haemorrhage which had killed him. In paragraphs 11, 12 and 13, the Lord Chief Justice said this:

"11. The judge was right to say that cases such as this present a difficult sentencing exercise. A sentence must reflect the seriousness of the offence. The seriousness depends on the culpability of the offending conduct and on the harm that has resulted from it. Difficulty arises where there is a wide disparity between the culpability of the offender and the harm that he has caused. In the crime of manslaughter the harm caused is an element of the offence. No harm can be more serious than the death of a victim. Its impact usually extends, as it does in this case, to the relatives who have lost a loved one. They may, understandably, feel that no sentence can properly reflect the harm that has been caused. Because of the harm caused, the offence of manslaughter will usually, though not inevitably, attract a custodial sentence, regardless of the nature of the wrongdoing that has caused the death.

12. It is right, however, that the length of the sentence must reflect the culpability of the offender. This can vary widely in the case of manslaughter from violent or reckless behaviour that foreseeably carries the risk of causing death, to a case where death results from an unlawful act as a consequence of a fortuity which the offender could not reasonably have foreseen. Death resulting from a single punch usually falls into this category.

13. The circumstances in which the punch was delivered will have a significant effect on the length of the sentence; but where the consequences of the punch were not reasonably foreseeable, care must be taken to see that the effect is not disproportionate."

At paragraph 28 the Lord Chief Justice said that the sentence range was between 12 months, where there is a guilty plea and no aggravating circumstances, through to four years, where there are aggravating circumstances, depending on the particular facts. In that case a sentence of two and a half years' imprisonment was reduced to one of 12 months' imprisonment. That case is a useful guide, but does not deal with the situation where the manslaughter takes place during the course of a robbery in someone's home.

34. We turn finally to Attorney-General's Reference Nos 90 and 91 of 2006 (Richards and Botchett) [2006] EWCA Crim 3252. The offenders were aged 34 years and 30 years and had substantial previous convictions. They had pleaded guilty to a number of offences, including manslaughter, inflicting bodily harm, attempted burglary and burglary. The sentence on the count of manslaughter was five years for the offender Botchett and four years for the offender Richards.
35. It is important to look at the facts, which are set out in the judgment of Latham LJ starting at paragraph 4:

"4. The attempted burglary was the first in point in time of the offences which those offenders committed. They had driven together to the village of Painswick in Gloucestershire in 14 August 2005 and found themselves at the Painswick Hotel at about 8.30 that evening. The hotel receptionist was alerted to the fact that there might be some intruders and eventually found, it would appear, the offender Botchett in the process of climbing into a ground floor guest room. The offender Richards was behind him. On realising that they had been seen, both men ran off. They were seen running from the hotel by a couple walking their dog and moments later the same couple saw the offenders in a motorcar. It would appear that during the course of the evening (it is not known precisely when) a Siemens mobile phone was stolen from a car in Painswick. That in fact was ultimately used to place - because it was used by the one of the offenders - the offenders in the area later that evening at Hawkwood College. That is an institution providing residential courses situated some two miles south of Painswick, with accommodation attached to it. It also has in it accommodation for a caretaker, who was a Mr Jordan, and also a flat which was occupied by the deceased, Mr Hart.

5. The college site is very secluded. At about 9.00 pm, some half an hour after the incident at the Painswick Hotel, Mr Jordan, who is 53 years old, heard muffled voices downstairs, and then followed footsteps coming up the stairs to where he was, which was in his flat. He stepped out onto the top of the staircase. He saw somebody, said "Hello", at which point the two men were seen going back down the stairs and going out of the building. Mr Jordan followed and was met by the offenders at the porch. Mr Jordan asked what they were doing there. Richards claimed that they had run out petrol. Mr Jordan was unconvinced by this explanation and as they turned to walk away from the building he decided to follow. As he passed the flat of Mr Hart he attracted his attention and asked him to accompany him. They followed the offenders to the car park area, which is some distance from the main building. When the offenders got to the car park the offender Botchett got into the passenger seat of the car and closed the door. The offender Richards opened the driver's door. Mr Jordan, who was thoroughly suspicious of both of these men, thought that Richards had produced a screwdriver but it may well have been the key of the car. At this stage Mr Hart decided, unhappily, to intervene, and took up, as Mr Jordan described it, a typical fisticuffs attitude to the offender Richards, who said to Mr Hart, "Don't be aggressive", at which the deceased said he was not being aggressive. The offender Botchett then decided to take matters into his own hands. He leapt out of the car and went for Mr Hart. In the basis of plea which was submitted to the judge in the first instance, he admitted that he struck Mr Hart on at least two occasions, one of those blows causing Mr Hart to fall to the ground. That was explained to the judge as being "hand-offs", but it was accepted that both were powerful blows. The result was that Mr Hart fell to the ground, struck his ahead, and sustained what proved to be, as a result, a fatal injury to the brain. The offender Botchett was not content to leave the matter there. He then proceeded to attack Mr Jordan. He struck Mr Jordan a number of blows. We have seen the results in photographs which were taken of Mr Jordan later that evening. His eyes were severely swollen. They were purple. The severity of the injuries sustained by Mr Jordan was such that the paramedic who attended thought that the injuries had been sustained by his having been stamped on, there was so much swelling. The description of the injuries at the hospital where he was taken for treatment were that he was suffering from gross bruising of both orbital regions, bilateral subconjunctival haemorrhaging. He also had a chipped tooth.

6. The offender Botchett, meanwhile, whilst Mr Jordan was on the ground, stole £50 from Mr Jordan's pocket. Those were the facts which gave rise to the indictment.

7. In the circumstances that we have described, the Attorney-General submits that the sentences on both offenders were unduly lenient. He points to the fact that the offence of manslaughter was committed effectively in the course of a burglary, albeit that the two premises which were entered by these offenders could be described as institutions rather than domestic houses, nevertheless they were both occupied: a hotel on the one hand, and the college on the other, where there were the residential flats.

8. The attack on Mr Hart was in order to escape. The attack on Mr Jordan would appear to have had the same motive but would also appear to have been entirely gratuitous, as Mr Jordan from the evidence before us does not appear to have been attempting to play any part in the proceedings.

9. The offender Botchett has nine previous offences of burglary, one of previous assault on police, a conviction for robbery and a conviction for affray. Further, he has been sentenced to a two-year community order for theft, criminal damage and obstructing an officer the day before the commission of these offences. As far as the offender Richards was concerned, the killing was effected during the course of committing a burglary and the same comments as to the nature of the burglaries apply to him as to the offender Botchett. His criminal record includes 20 previous convictions for burglary of both dwelling houses and non-dwelling buildings. He was at the time on licence from a sentence of 33 months' imprisonment which had been imposed for offences of burglary.

10. As far as the mitigating features were concerned both offenders had ultimately pleaded guilty. Both expressed remorse. Neither had set out that evening with violence in mind and, as far as the offender Richards was concerned, he played an entirely passive role in the incident which resulted in the death of Mr Hart and the injuries to Mr Jordan."

36. The Attorney General submitted that in relation to the offender Botchett, the least sentence that should have been considered by the sentencing judge was one of ten years' imprisonment. In paragraph 17 Latham LJ said this:

"But nonetheless, at the end of the day one of the critical features of sentencing in manslaughter cases is that the court must take into account the fact that there is or was no intent to cause really serious harm or to kill, and that is inherent in the offence with which the court is concerned. Nonetheless, looking overall at the facts presented in this case, this court is of the view that the appropriate sentence for manslaughter should have been in the region of 10 to 12 years before any discount for plea. That is substantially in excess of the 8 years which this sentencing judge considered was appropriate and which he proceeded to use as the base for the sentence of 5 years and 4 months on the offender Botchett, that discount being reached by reason of the plea of guilty."

37. It will be noted that that sentence was considered appropriate for a defendant with substantial previous convictions and where the overall violence of the attack was considerably greater.
38. Mrs Azmi, in her defence skeleton response, submits that the sentence is not unduly lenient. She writes:

"This is a case involving one punch to the victim's cheek, which caused him to sit back down in his chair. The offender could not have foreseen at the time that he administered the blow that it may result in death. In addition even after the blow was struck the offender could not have foreseen that death may follow. This is not a case where offenders flee the scene leaving the victim in a very bad state of health. When the offender fled, the victim was conscious and not displaying the physical signs of one who had been badly injured. The victim himself did not realise the damage that the punch had caused him, and accordingly did not seek medical attention at the time. It was not until eight days later that he showed signs of becoming ill."

39. Given the sentence of three years and six months' detention, the starting point used by the judge for the second offender must have been just over five years. In the light of the fact that the manslaughter occurred during the course of a robbery in the victim's home, the appropriate starting point for an offender in these circumstances, and with no previous convictions after a trial, was in our view in the region of eight to nine years. The sentence passed by the judge was unduly lenient and, taking into account the plea, the offender's age and double jeopardy, we substitute a sentence of five years' detention to be served concurrently to the sentences on the robbery counts. This sentence is also to take effect from 8th March.
40. The days spent on remand to which we have already made reference will count towards the sentences.